4.1 Requesting Alternative Compliance Measures. Under certain conditions as specified in Chapter 25B, it may be possible to request an alternative method of providing the required number of WFH Units. To satisfy the requirements of this Section, a Developer may request to:
(a) Build, or convert from non-residential use, the required number of WFH Units at an alternative site in the same Planning Policy Area, approved by the Director; and/or
(b) Buy, encumber, or transfer, and rehabilitate as necessary, existing WFH Units for which price or rent controls have expired;
4.2 Approval to Provide WFH Units at an Alternative Location in the same Planning Policy Area.
(a) If a Developer wishes to provide WFH Units at an alternative location, they must be provided in the same Planning Policy Area under the provisions of Section 25B-26. The Developer must submit a written request to the Director not less than 90 days prior to the submission of a Development Application for the Project for which the alternative location approval is being requested. The Director must communicate a decision on a request prior to the filing so that the Developer may include the Director’s approval in the Development Application, if applicable.
(b) In order to make such a request to the Director, the Developer must submit in writing, at a minimum:
(1) Justification as to how the public benefit of locating WFH Units at the proposed alternative location, or converting non-residential property to WFH Units, is equivalent to the value of locating WFH Units in each applicable Project throughout the County; or
(2) Documentation in a form acceptable to the Department demonstrating that building a sufficient number of WFH Units at the original site would require a Change in Type of Building Construction;
(3) Justification that building or converting the WFH Units at the proposed alternative location will further the objective of providing a broad range of housing opportunities throughout the County; and
(4) Proof of control of alternative sites for building or conversion; such proof may include a title report showing ownership, an executed purchase contract for the site(s) which includes a description of the property, or other documentation acceptable to the Department.
(5) Any legal and descriptive information about the proposed alternative sites as the Department may require.
(c) Transfer Decision and Agreement. The decision to approve a request for an Alternative Compliance Measure must take into consideration how the public interest will best be served. Any decision regarding the transfer must be made in accordance with the following conditions:
(1) The Director must make a decision within 90 days of receiving the request. A copy of the decision must be provided to the Developer, the Planning Board, and the Montgomery County Department of Permitting Services.
(2) The Director may reject any request, either in part or in whole, if the Director determines that the transfer will not serve the public interest.
(3) After the Director has made a determination regarding the request, the Director must submit the determination prior to the time that the Planning Board or Director of the Department of Permitting Services considers its approval request for the original Development Application.
(4) If the Director approves the request for an Alternative Compliance Measure for the WFH Unit, the Developer and the Department must enter into an Agreement to Build WFH Units which guarantees, at minimum, that the WFH Units will be completed in the same time frame as the market rate units. This agreement must replace the Agreement to Provide WFH Units. Each agreement must include a schedule, binding on the Developer, for timely completion or acquisition of the required number of WFH Units.
(5) The Developer must prepare and execute the necessary warranty deed(s); arranging for settlement, ensuring that the deeds are properly recorded and delivering evidence of good title to the transferred lots or land.
(6) The Department may, at its discretion, require that the Developer post a bond in order to guarantee that the required WFH Units are built in accordance with the terms of the agreement.